A Texas hospital recently experienced the legal world’s version of a good news/bad news joke when a federal judge told them that their policy of limiting the duration of leaves was illegal but they didn’t violate the law when they applied the policy to a disabled employee. Salem v. Houston Methodist Hospital, C.A. No. 4:14-1802 (S.D. Tex. Oct. 30, 2015). Here’s how the story unfolded.
Absolute Policies are Absolutely Wrong
Due to some personal medical issues, Fatima Salem, a nurse at Houston Methodist Hospital, took a leave of absence under the Family and Medical Leave Act (FMLA). She returned for a short time two months later but then needed to go back on leave, this time for a period that would exceed her remaining FMLA eligibility. This meant that she would also exceed the limits of the Hospital’s policy restricting any leave of absence to no more than six months. When Salem asked the Hospital to waive this policy in her case, they declined and ended up terminating her employment when she was not able to return to work within the requirements of the policy.
Salem filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) claiming that the application of the employer’s policy capping leaves of absence at six months was a failure to accommodate under the Americans with Disabilities Act (ADA).She also alleged that the corresponding termination violated the ADA as well. The EEOC agreed that the six-month limit on leaves violated the ADA because it created an artificial means of avoiding the employer’s duty to engage in an interactive process to see if a reasonable accommodation for the employee might be feasible. In other words, this one-size-fits-all policy is completely at odds with the individualized analysis that the ADA requires for all cases.
Based on the specific facts of the case, however, the EEOC also ruled that they were unable to conclude that the termination itself violated the ADA.
No Harm, No Foul
Salem subsequently marched right into federal court to sue the Hospital based on the same facts and offering the same arguments. Federal Judge Nancy Atlas also criticized the Hospital’s refusal to consider bending their six-month restriction on the duration of leaves. Nonetheless, she concluded that the employer had not unlawfully failed to reasonably accommodate for one very simple reason – Salem had never demonstrated that any accommodation might be possible because she did not inform the Hospital of a date on which she might return.
Judge Atlas explained that had Salem offered a projected date for her possible return, the Hospital could have considered their options and determined whether they might be able to work around Salem’s absence until she was able to resume working. But, by asking only to be gone from work without indicating when she might be back, if ever, her request was tantamount to an indefinite leave of absence which the court considered unreasonable. Salem therefore was not permitted to take her case to trial and her claims were dismissed in their entirety.
Bottom Line
This decision is a very important reminder of how policies on leaves of absence should be enforced. Certainly, it is reasonable to maintain guidelines on how long leaves of absence may last. However, using those guidelines to inflexibly deny any medical leave that might exceed the limit invites liability under the ADA, which mandates individualized analysis of each case to determine whether a reasonable accommodation might be possible. Simply standing behind such a policy to decline a leave for an extra week or two, or even more depending upon the circumstances, flies in the face of the this requirement of individualized consideration.
As seen in this case, courts are increasingly unwilling to consider an indefinite leave of absence to be a reasonable accommodation. It is not at all uncommon for an employee to present a doctor’s note requesting a leave of absence for a specific period (three months, for example) at the end of which the employee will be reevaluated. When the reevaluation takes place, the employee returns with another note seeking three more months and another reevaluation, and so on and so on.
At some point, it becomes clear that such employees no longer are seeking leaves to permit them to return to work to perform the essential functions of their jobs.. Instead, they are just seeking to be gone and are unlikely ever to return. In such instances, the leave of absence is no longer reasonable and as this case demonstrates, courts are increasingly likely to support employers will who say enough is enough. The key for the employer, of course, is to know when to make that call and for this, inflexible standards are no substitute for an individualized evaluation of each and every situation that comes up.